MEMORANDUM AND ORDER
COHN, District Judge.
I.
This is a patent case. Defendants Fuji Heavy Industries, Ltd. (Subaru); Bayer-ische Motoren Werke AG (BMW); Mitsubishi Motors Corporation (Mitsubishi); Nissan Motor Co., Ltd. (Nissan); Isuzu Motors Limited (Isuzu); Peugeot, S.A. (Peugeot); Toyo Kogyo Company, Ltd. (Mazda); A.B. Volvo (Volvo); Toyota Motor Co., Ltd. (Toyota); Saab-Scania (Saab); and Honda Motor Co., Ltd. (Honda) have filed motions to dismiss for failure of service of process.
Fed.R.Civ.P. 4. Although several of the defendants have filed separate sets of papers in support of their motions, each of the motions raises the same issue. Defendants, all foreign automobile manufacturers, assert that plaintiff Robert W. Kearns (Kearns) failed to serve them with process in compliance with either Fed.R.Civ.P. 4 or the Hague Convention governing international service of process. In response, Kearns concedes that proper service has not been made. However, Kearns argues that under Fed.R.Civ.P. 4(j), he has good cause for failing to make proper service and that dismissal is not warranted.
II.
Kearns filed his complaint in this action on January 31, 1985, naming 20 manufacturers and 11 dealers as defendants. All defendants were subsequently served by mail. By June 10, 1985, Kearns’s counsel was notified by Nissan’s counsel that service was improper. On June 24, 1985, Kearns’s counsel acknowledged that service had not been made under the Hague Convention. On June 12, 1985, defendant Renault filed a motion to quash service of process. On August 21, 1985, a magistrate denied Renault’s motion. The Court (Pratt, J.) affirmed the denial on December 26, 1985.
Over the next four years, defendants entered into a series of stipulations extending the time to answer Kearns’s complaint.
The stipulations contained no reservation of the right to contest the sufficiency of service of process. In response to the Court’s Pre-trial Order No. 2 dated April 24,1989, which suggested that the outcome of case no. 78-70740,
Kearns v. Ford Motor Co.,
might have an effect on the issues raised in this case, defendants Saab, Toyota, Mazda, Subaru, Peugeot, Volvo, Nissan, and Honda filed either comments or objections. None of the responses contained a reservation of the right to contest the suffi
ciency of service of process.
Other than filing comments or objections, defendants engaged in no activity in the case.
On December 4, 1989, the Court entered an Order staying the case for nine months. On January 5, 1990, Kearns served BMW’s Chairman of the Board who was present in the Eastern District of Michigan at the Detroit Auto Show. That action ultimately precipitated the multitude of motions now before the Court. Prior to that time, the Court was unaware that the sufficiency of service of process was considered by defendants to be an issue requiring resolution. None of the defendants seeking dismissal deny actual notice of Kearns’s action.
III.
The main thrust of Kearns’s argument in opposition to dismissal is that given the passage of time since the complaint was filed, the fact that all of the defendants have had actual notice of the proceedings, and the Court’s ruling on Renault’s motion to quash, it had no reason to believe that the defendants did not acquiesce in the Court’s jurisdiction despite the insufficient service. According to Kearns, this constitutes good cause, as defined by Fed.R. Civ.P. 4(j), for failing to properly serve the defendants within the 120-day time limit. While the Court finds merit in Kearns’s arguments, it appears that Kearns is looking at the wrong side of the coin.
The issues raised in Kearns’s response are more properly viewed as waiver arguments. Fed.R.Civ.P. 12(h)(1) provides that:
A defense of ... insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in [Rule 12(g) ], or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.
However, Rule 12(h) “sets only the outer limits of waiver; it does not preclude waiver by implication.”
Marquest Medical Prods., Inc. v. EMDE Corp.,
496 F.Supp. 1242, 1245 n. 1 (D.Colo.1980). “[I]n person-am jurisdiction may be obtained by actions of a party amounting to a waiver, and a court has jurisdiction to enter an order finding a waiver.”
United States v. Gluklick,
801 F.2d 834, 837 (6th Cir.1986),
cert. denied,
480 U.S. 919, 107 S.Ct. 1376, 94 L.Ed.2d 691 (1987) (citations omitted). In this case, the Court is satisfied that defendants have waived the defense of insufficient service of process.
Each defendant filed a general appearance.
Because Kearns was unable to actively pursue the litigation at the time the complaint was filed, and because defendants were more than satisfied to delay resolution of the case, the parties repeatedly stipulated to extensions of the time to answer the complaint. None of the stipulations reserved the right to contest the sufficiency of process. In fact, despite entering into a stipulation to extend its time to answer, Renault filed its motion to quash service. After the motion to quash service was denied, none of the defendants raised
the issue for four years. Thus, both Kearns and the Court would have been justified, had they given any thought to it, in thinking that defendants had accepted service and acquiesced to personal jurisdiction.
While it is true that a general appearance does not constitute a waiver of the defense of lack of personal jurisdiction due to insufficient service of process, once the defendant appears the contest of the court’s jurisdiction must be timely.
Marcial Ucin, S.A. v. SS Galicia,
723 F.2d 994, 997 (1st Cir.1983). Otherwise, the contest of jurisdiction is barred by laches.
Id.
The facts here parallel the fact situation in
Marcial Ucin.
There, the defendant filed a general appearance. When the plaintiff moved for a default judgment for failure to answer the third party complaint, the defendant responded by filing a motion to dismiss on the ground that it was not properly served with process. The defendant had not filed a motion to dismiss under Fed.R.Civ.P. 12
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MEMORANDUM AND ORDER
COHN, District Judge.
I.
This is a patent case. Defendants Fuji Heavy Industries, Ltd. (Subaru); Bayer-ische Motoren Werke AG (BMW); Mitsubishi Motors Corporation (Mitsubishi); Nissan Motor Co., Ltd. (Nissan); Isuzu Motors Limited (Isuzu); Peugeot, S.A. (Peugeot); Toyo Kogyo Company, Ltd. (Mazda); A.B. Volvo (Volvo); Toyota Motor Co., Ltd. (Toyota); Saab-Scania (Saab); and Honda Motor Co., Ltd. (Honda) have filed motions to dismiss for failure of service of process.
Fed.R.Civ.P. 4. Although several of the defendants have filed separate sets of papers in support of their motions, each of the motions raises the same issue. Defendants, all foreign automobile manufacturers, assert that plaintiff Robert W. Kearns (Kearns) failed to serve them with process in compliance with either Fed.R.Civ.P. 4 or the Hague Convention governing international service of process. In response, Kearns concedes that proper service has not been made. However, Kearns argues that under Fed.R.Civ.P. 4(j), he has good cause for failing to make proper service and that dismissal is not warranted.
II.
Kearns filed his complaint in this action on January 31, 1985, naming 20 manufacturers and 11 dealers as defendants. All defendants were subsequently served by mail. By June 10, 1985, Kearns’s counsel was notified by Nissan’s counsel that service was improper. On June 24, 1985, Kearns’s counsel acknowledged that service had not been made under the Hague Convention. On June 12, 1985, defendant Renault filed a motion to quash service of process. On August 21, 1985, a magistrate denied Renault’s motion. The Court (Pratt, J.) affirmed the denial on December 26, 1985.
Over the next four years, defendants entered into a series of stipulations extending the time to answer Kearns’s complaint.
The stipulations contained no reservation of the right to contest the sufficiency of service of process. In response to the Court’s Pre-trial Order No. 2 dated April 24,1989, which suggested that the outcome of case no. 78-70740,
Kearns v. Ford Motor Co.,
might have an effect on the issues raised in this case, defendants Saab, Toyota, Mazda, Subaru, Peugeot, Volvo, Nissan, and Honda filed either comments or objections. None of the responses contained a reservation of the right to contest the suffi
ciency of service of process.
Other than filing comments or objections, defendants engaged in no activity in the case.
On December 4, 1989, the Court entered an Order staying the case for nine months. On January 5, 1990, Kearns served BMW’s Chairman of the Board who was present in the Eastern District of Michigan at the Detroit Auto Show. That action ultimately precipitated the multitude of motions now before the Court. Prior to that time, the Court was unaware that the sufficiency of service of process was considered by defendants to be an issue requiring resolution. None of the defendants seeking dismissal deny actual notice of Kearns’s action.
III.
The main thrust of Kearns’s argument in opposition to dismissal is that given the passage of time since the complaint was filed, the fact that all of the defendants have had actual notice of the proceedings, and the Court’s ruling on Renault’s motion to quash, it had no reason to believe that the defendants did not acquiesce in the Court’s jurisdiction despite the insufficient service. According to Kearns, this constitutes good cause, as defined by Fed.R. Civ.P. 4(j), for failing to properly serve the defendants within the 120-day time limit. While the Court finds merit in Kearns’s arguments, it appears that Kearns is looking at the wrong side of the coin.
The issues raised in Kearns’s response are more properly viewed as waiver arguments. Fed.R.Civ.P. 12(h)(1) provides that:
A defense of ... insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in [Rule 12(g) ], or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.
However, Rule 12(h) “sets only the outer limits of waiver; it does not preclude waiver by implication.”
Marquest Medical Prods., Inc. v. EMDE Corp.,
496 F.Supp. 1242, 1245 n. 1 (D.Colo.1980). “[I]n person-am jurisdiction may be obtained by actions of a party amounting to a waiver, and a court has jurisdiction to enter an order finding a waiver.”
United States v. Gluklick,
801 F.2d 834, 837 (6th Cir.1986),
cert. denied,
480 U.S. 919, 107 S.Ct. 1376, 94 L.Ed.2d 691 (1987) (citations omitted). In this case, the Court is satisfied that defendants have waived the defense of insufficient service of process.
Each defendant filed a general appearance.
Because Kearns was unable to actively pursue the litigation at the time the complaint was filed, and because defendants were more than satisfied to delay resolution of the case, the parties repeatedly stipulated to extensions of the time to answer the complaint. None of the stipulations reserved the right to contest the sufficiency of process. In fact, despite entering into a stipulation to extend its time to answer, Renault filed its motion to quash service. After the motion to quash service was denied, none of the defendants raised
the issue for four years. Thus, both Kearns and the Court would have been justified, had they given any thought to it, in thinking that defendants had accepted service and acquiesced to personal jurisdiction.
While it is true that a general appearance does not constitute a waiver of the defense of lack of personal jurisdiction due to insufficient service of process, once the defendant appears the contest of the court’s jurisdiction must be timely.
Marcial Ucin, S.A. v. SS Galicia,
723 F.2d 994, 997 (1st Cir.1983). Otherwise, the contest of jurisdiction is barred by laches.
Id.
The facts here parallel the fact situation in
Marcial Ucin.
There, the defendant filed a general appearance. When the plaintiff moved for a default judgment for failure to answer the third party complaint, the defendant responded by filing a motion to dismiss on the ground that it was not properly served with process. The defendant had not filed a motion to dismiss under Fed.R.Civ.P. 12(b) or a responsive pleading prior to its motion to dismiss for improper service. The motion to dismiss was filed some four years after the complaint was served. The Court of Appeals for the First Circuit held that the defendant’s conduct was sufficiently dilatory and inconsistent with its assertion of a lack of personal jurisdiction to constitute a waiver of the defense.
The only significant fact distinction between this case and
Marcial Ucin
is that the defendant in
Marcial Ucin
attended depositions. Although the defendants in this case have not attended depositions, their conduct has been sufficiently inconsistent with the assertion of insufficient service of process to constitute waiver. In addition to the stipulated extensions and objections filed, the case has been marked by numerous other instances of behavior inconsistent with the insufficient service claim. For example, the Court takes judicial notice of the fact that counsel for several of the defendants observed the entire trial in case no. 78-70740,
Kearns v. Ford Motor Co.
None of the motions to dismiss were filed until after the jury in the
Ford
case upheld the validity of the Kearns patents.
Also, prior to filing its motion to dismiss, Honda filed a motion for partial summary judgment that contained no reservation of Honda’s right to assert the insufficient service of process defense.
Finally, the Court notes that the policy underlying Rule 12 also supports a finding that defendants have waived their objections to service of process. Rule 12 was intended to eliminate unnecessary delay at the pleading stage by requiring defendants to raise all defenses in one pre-an-swer motion.
Marcial Ucin,
723 F.2d at 997. Otherwise, piecemeal presentation of defenses could be used to unnecessarily drag out the case and exhaust the plaintiff's stamina and resources.
Four years
is simply too long a period for defendants to wait to raise the issue of the sufficiency of service of process. Defendants motions to dismiss are DENIED.
SO ORDERED.